Before McMILLIN, P.j., Diaz, And Herring, JJ.
The opinion of the court was delivered by: McMILLIN, P.j., For The Court:
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 02/27/96
TRIAL JUDGE: HON. MICHAEL RAY EUBANKS
COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: COURT UPHELD ADOPTION BY COUNTY AGENCY OF RESTRICTIVE COVENANTS
This case comes before the Court as an appeal by Flowers & Frames, Inc., the plaintiff at the trial level. The corporation is appealing the decision of the circuit court to grant summary judgment against it on its claim for money damages against the Lamar County Economic Development District, a governmental body that is a subdivision of Lamar County, organized under authority of section 19-5-99 of the Mississippi Code. For reasons which we now set out, we affirm the circuit court's decision.
Flowers & Frames, Inc. (hereafter "FFI") was a tenant in a light industry industrial park developed by the Lamar County Economic Development District (hereafter "LCEDD") on Sixteenth Section land that LCEDD had leased from the Lamar County Board of Education. At the time FFI acquired its rights as a tenant in the park, the entire development had been made subject to restrictive covenants adopted by LCEDD that included a restriction on retail sales activity in the park to "any commodity manufactured, fabricated, or processed on the premises...." Elsewhere in the covenants was a provision whereby LCEDD reserved to itself "the right to modify and amend said covenants and/or to suspend applicability of any such covenants, conditions or restrictions, upon written application by any lessee." (emphasis supplied).
After FFI began its occupancy, another business was established in the park whose principal activity was the retail sale of computers and related accessories. The business was owned by GLJ, Inc. and operated under the trade name of MicroAge of Hattiesburg. There is no indication that the products MicroAge proposed to sell were manufactured, fabricated or processed on site. Prior to entering into its lease with LCEDD, MicroAge made a written request that LCEDD modify the covenants to permit it to engage in retail sales. LCEDD agreed to the request and a formal amendment to the covenants was executed that permitted, in addition to activities previously allowed, the "[w]holesale and retail sale of any computers and/or computer related peripherals." This additional sales activity was allowed only on the tract being leased by MicroAge.
Upon learning of this fact, FFI filed suit against LCEDD, claiming that it had previously asked for authority to operate a retail business at its location but that permission had been denied. According to FFI's suit, this denial, coupled with the grant of similar authority to MicroAge, evidenced that FFI was being treated in an arbitrary and capricious manner in violation of LCEDD's "duty to treat all tenants in a fair, uniform and equitable manner." Alternatively, FFI alleged these facts to constitute a breach of a contractual duty owing to FFI by LCEDD, though the specific provision of the lease giving rise to this duty is not set out. FFI claims that, because it was arbitrarily denied authority to engage in retail activity, it was forced to open a separate retail establishment at a substantial cost. FFI claimed that LCEDD ought to be made to respond in damages for these breaches. Finally, FFI claimed to be entitled to injunctive relief to end MicroAge's retail sales activities in the park.
The trial court granted summary judgment for LCEDD on the claims for money damages and announced its intention to hold a bench hearing on FFI's request for an injunction to halt MicroAge's retail activities. At that point, FFI voluntarily dismissed its claim for injunctive relief. The trial court thereupon converted its previous partial summary judgment to a final judgment since all contested issues had been resolved. It is from that final judgment that FFI brought its appeal to this Court.
Because the case comes to us on appeal from a grant of summary judgment, our review is de novo. Collier v. Trustmark Nat'l Bank , 678 So. 2d 693, 695 (Miss. 1996) (citing Downs v. Choo , 656 So. 2d 84, 85 (Miss. 1995)). We afford no deference to the trial court's decision and conduct our own independent review of the same facts considered by the trial court. Only if this Court is satisfied that there are no contested issues of material fact and that LCEDD is entitled to judgment as a matter of law may we affirm the circuit court's decision. Miss. R. Civ. P. 56(c); Erby v. North Mississippi Med. Ctr. , 654 So. 2d 495, 499 (Miss. 1995).
FFI, in its statement of the issues, alleges that summary judgment was improperly granted because "there remained genuine issues of material fact and [LCEDD] was not entitled to judgment as a matter of law." However, this Court's review of FFI's brief fails to unearth any material issue of fact that FFI claims to be in dispute. Rather, FFI's argument is directed to the proposition that the trial court erred in deciding what ...